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NO MVA PAYOUT FOR IMBALI KILLED IN CRASH

20/09/2020 06:21:00 BY MFANUKHONA NKAMBULE

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MBABANE – It’s a bitter pill to swallow. The Times SUNDAY has learnt that the families of the 10 maidens who died five years ago, enroute to Ludzidzini Royal Residence from cutting reed, were never compensated by the Sincephetelo Motor Vehicle Accidents Fund (SMVAF).

They were from Mpisi Farm when they met their death at the Matsapha flyover bridge (MR3 Public Road) on August 28, 2015. Others who died during the accident were three males, who were their leaders or supervisors.

The accident occurred after one of the two trucks, on which they were aboard, hit a van that had been pulled over by traffic police officers. The second truck hit the first one and caused a pile-up.

His Majesty King Mswati III accorded them a state funeral to indicate their importance and the fact that they died in the line of duty.

The 10 maidens were:

1. Bongiwe Gamedze,

2. Pretty Zama Mkhwanazi,

3. Nolwazi Maziya,

4. Neliswa Mabuza,

5. Phiwokwakhe Tsabedze,

6. Nelile Dlamini

7. Nomcebo Sikhondze

8. Sekwanele Smotho Mtsetfwa

9. Sikhulile Dlamini;

10. Setsabile Dlamini

It could not be ascertained at the time of compiling this report if the three male supervisors, known as tindvuna, would be compensated.

They are Bongani Shongwe, Makhosonkhe Dlamini and Themba Maziya.

Investigations unearthed, though, that the main reason for SMVA Fund to exclude the families from payment of death benefits is that the deceased maidens did not have dependants. They also did not have sources of income for which they could be compensated.

It must be said that this is perceivably the negative side of Section 10 of the Motor Vehicle Accidents (Amendment) Act, 2011, which guarantees no compensation for deceased people, other than funeral benefits, who had no source of income or dependants at the time of their death. However, a legal expert interpreted Section 10(2)(k) in favour of the families of the deceased.

The expert advised that this provision could have been invoked to console the broken hearts of the family members who lost their children.

Reads Section 10(2)(k): “Subject to the conditions, limitations and exclusions imposed by this Act, the benefits to be provided by the SMVA Fund shall be one or more of the following - such other benefits as the minister may, in consultation with the Board, prescribe.”

similar accident

It must be said that parents and guardians of the deceased imbali had hoped to get a share of E1 million, which is the total liability of the SMVA Fund for all claimants eligible for an award emanating from a similar accident.

Section 10 of the Act, which has been interpreted to be depriving the bereaved families of the monetary benefit, reads: “A claimant who has suffered loss as a result of injury to himself, or as a result of the death or injury of any person, in either case caused by or arising out of the negligent driving in any place in Swaziland (Eswatini) of a motor vehicle by another person or other unlawful act of the person driving the motor vehicle (‘the driver’) or of the owner of the motor vehicle or his servant in the execution of his duty, shall, subject to the conditions, limitations and exclusions imposed by this Act, be entitled to claim the benefits prescribed by this Act from the SMVA Fund.”

Nester Ntombi Dlamini (nee Khumalo), the mother of deceased Nelile Monica Dlamini, said they had been to the public enterprise in Mbabane where they did not get any financial compensation for the loss of their children.

Nelile was 19 at the time of her death.

Her mother said she suffered a loss because her child had a bright future, and would have taken care of her when reaching adulthood. She said her child was responsible for domestic chores, something which she was no longer benefitting.

Nelile’s mother went on to say that her death caused her to suffer stress, anguish, pain and loneliness.

don’t understand

“I really don’t understand why the Motor Vehicle Accidents (Amendment) Act of 2011 is discriminatory against people, particularly children, who died without any source of income or dependants,” she complained.

She then thanked His Majesty the King for offering E17 400 to each of the bereaved families.

The family of deceased Nomcebo Sikhondze also confirmed that they did not receive any monetary benefit from SMVA Fund for their departed daughter.

The Sikhondze family converged to address this newspaper on the matter, also thanking the Ingwenyama for consoling their broken hearts with the E17 400 given to each of the bereaved families. “It doesn’t matter how much you have received, but the fact that it comes from the King, makes one feel the consolation deep down one’s heart, and that’s why we are grateful to the King,” one of the family members said.

They said they frequented the SMVA offices with the hope that they would be compensated for the death of their children until they decided against going there because help was not forthcoming. One of the children from this family abandoned school because she was injured in the head.

It must be said that parents or guardians in some countries like United Kingdom and South Africa are compensated for the death of their children. They are compensated for what is called ‘future income potential’.

On the other hand, Section 10 of Eswatini’s Motor Vehicles Accident Act provides that SMVA Fund should offer benefits for one or more of the following:

l the payment of income lost as a

result of inability to work on

account of injuries sustained in an

accident;

l the payment of financial support

lost by dependants as a result of the death of a person caused by an

accident;

l where the benefit paid is to pay

for future loss of financial support

such benefit shall be payable by

such instalments, and be limited

to such amount specified under

this Act;

l such assistance as may be recom-

mended to be necessary to

enhance the quality of the post

accident life of a claimant by a

service provider;

l The payment of the cost of treat-

ment rendered by any service

provider, including consultation,

treatment and hospitalisation

costs;

l medical treatment or management

by any service provider, including

consultation and hospitalisation;

l rehabilitation by any service

provider including consultation,

treatment and hospitalisation;

l payment of incidental expenses

which shall include accommoda-

tion, transport and subsistence

costs incurred or to be incurred

during the treatment or rehabilit-

ation of the claimant;

l payment of funeral expenses.

l Other benefits as the minister

may, in consultation with the

Board, prescribe.

David Myeni, the new Chief Executive Officer of SMVA Fund, confirmed the law was crafted such that there was no benefit, apart from funeral expenses, for people who were not breadwinners. The funeral budget was fixed at E10 000.

He disclosed that there was indeed no monetary budget for parents and guardians of the children who lost their lives during the 2015 accident.

Myeni mentioned that the law was enacted to accommodate only people who had been making an income, and had dependants he or she had been maintaining at the time of their death.

The CEO pointed to the fact that they would have to find a way to include income potential if need be, adding that such a process would have to be initiated and legislated.

medical expenses

However, he said SMVA Fund paid for medical expenses for the 53 maidens, who got injured during the accident. He said the process included treatment, hospitalisation and rehabilitation. He said they were yet to calculate the monetary benefit for the 53 maidens who survived the accident.

Pertaining to the rights of children, Section 29 (7)(d) of the Constitution of the Kingdom of Eswatini imposes duty on Parliament to enact laws that will ensure children receive special protection against exposure to physical and moral hazards within and outside the family.

Sipho Gumedze, a Manzini-based senior attorney, said he was aware of the issue in which families of deceased children, in particular, were excluded from compensation. Gumedze said their exclusion appeared to be a worldwide practice because the deceased children did not leave behind dependants and had no source of income.

“They usually say that no one suffers support or loss of income as a result of the death of a child,” Gumedze said.

Attorney General (AG) Sifiso Khumalo was asked if the government company sought advice from him.

In his response, Khumalo mentioned that his office did not receive any request for legal advice from SMVA Fund. He said it was, therefore, difficult for him to render advice from an informed position.

seasoned attorney

The Times SUNDAY asked seasoned attorney Advocate Lucas Maziya if he could take up the issue of the maidens in case their parents were to institute legal proceedings with SMVA Fund.

Responding to this question, Maziya first expressed shock that the families were not compensated for the death of their children. He said it was really unfair to the families that they were not compensated for the loss of their children. The seasoned attorney then said he could take up the matter and put it to the bench to interpret the Motor Vehicles Accidents Act.

Nondunduzo Zubuko, the leader of Imbali, referred enquiries to Lusendvo Fakudze, the Acting Governor of Ludzidzini Royal Residence, who said the issue had not been brought to them for discussion. He appreciated the part played by the King in catering for some of the expenses incurred by the bereaved families. Fakudze hoped other structures would handle the matter.

Fakudze mentioned that he would like to apprise himself with latest developments regarding the issue before he delved into it with authority.